Westerfield v. Superior Court

Citation99 Cal.App.4th 994,121 Cal.Rptr.2d 402
Decision Date08 May 2002
Docket NumberNo. D040021.,D040021.
PartiesDavid Alan WESTERFIELD, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; The People, Real Party in Interest.
CourtCalifornia Court of Appeals

Paul J. Pfingst, District Attorney, Gregory Thompson, Assistant District Attorney and Anthony Lovett, Deputy District Attorney, for Real Party in Interest.

McDONALD, J.

FACTUAL AND PROCEDURAL BACKGROUND

David Westerfield has been charged with murder with special circumstances, kidnapping, and misdemeanor possession of child pornography. Before the police arrested him, they searched Westerfield's home several times and seized, among other items, thousands of computer-stored and video images of allegedly obscene matter.

Westerfield requested that the prosecutor provide him copies of all images seized by the police. (Pen.Code,1 § 1054.1, subd. (c).) Refusing the request on the basis that the duplication and distribution would violate the child pornography statute, section 311.1,2 the deputy district attorney nevertheless permitted defense counsel to view the images at the FBI's computer crimes office in the presence of law enforcement representatives who remained in the room and monitored their activities.

Westerfield moved to compel production and copying of the computer and video images so that his attorneys could view them privately, have them examined by experts and talk confidentially. After reviewing binders of the images provided by the People, the court denied the motion, pointing out that (a) the People had agreed to provide Westerfield's attorneys unfettered access to the images and to remove law enforcement personnel from the room during the defense examination of the material, and (b) any defense expert would be able to sift through the material quickly and determine which images the People might seek to introduce at trial. The court reasoned that it did not have jurisdiction to order the prosecutor to duplicate and/or turn over the images to the defense and the copying and dissemination would violate section 311.1. Trial is set for May 17.

Westerfield challenges the ruling by this petition. He argues neither the statute nor public policy prohibits the copying of alleged child pornography for use by the defense in preparing its case. To the contrary, Westerfield points out, section 311.1, subdivision (b) expressly provides the statute prohibiting the possession, publication and dissemination of child pornography "does not apply to the activities of law enforcement and prosecuting agencies in the investigation and prosecution of criminal offenses...."3 He also asserts the ruling denies him access to evidence necessary for his counsel to effectively represent him. We requested a response.

DISCUSSION

The People counter that the exemption in section 311.1, subdivision (b) authorizes the duplication and distribution of the images only by "law enforcement and prosecuting agencies." Applying the rule of expressio unius est exclusio alterius the People argue the failure to include the defense within section 311.1, subdivision (b) means the Legislature did not intend to exempt the defense—and therefore requiring the prosecutor to duplicate material and turn it over to the defense would require the prosecutor to break the law.4 The People further note that section 3125 permits the court to order the images destroyed post-conviction but does not mention the defense, and copies in the possession of the defense would remain in circulation beyond the court's control.

The cardinal rule of statutory construction is to ascertain the intent of the Legislature and thus effectuate the purpose of the law. We start by looking to the plain meaning of the statutory language and, if further analysis is necessary, apply a reasonable and common sense interpretation and avoid absurdity. (See DeYoung v. City of San Diego (1983) 147 Cal.App.3d 11, 17-18, 194 Cal.Rptr. 722, overruled on other grounds in Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 78 Cal.Rptr.2d 1, 960 P.2d 1031.)

The obvious intent of the Legislature in enacting section 311.1, subdivision (a) was to criminalize the publication and/or distribution of material depicting minors engaged in sexual activities. If the statute extended to the criminal action itself, however, there would be no conceivable way for the state to try these cases or for the alleged child-pornographers to defend against the charges. Thus, by providing the exemption for the activities of agencies involved in the investigation and prosecution of criminal offenses under section 311.1, subdivision (b), the Legislature made it clear that use in the criminal action of images depicting minors involved in sexual activities does not qualify as the dissemination of child pornography under the statute.

Nothing in the plain language of section 311.1 prohibits the copying of the images for use by the defense in preparing for trial. The People's interpretation of the statute—that the deputy district attorney would violate the law if he copied the images for the defense—not only defeats the purpose of the law and exalts absurdity over common sense, but it is also logically flawed. If the exemption in section 311.1, subdivision (b) allows the prosecutor to duplicate and distribute the images for prosecution purposes as the People readily...

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10 cases
  • State v, Butler, No. E2004-00359-CCA-R9-CD (TN 3/30/2005)
    • United States
    • Tennessee Supreme Court
    • March 30, 2005
    ...and California, as set forth in Cervantes v. Cates, 76 P.3d 449 (Ariz. Ct. App. 2003), and Westerfield v. Superior Court of San Diego County, 121 Cal. Rptr. 2d 402 (Cal. Ct. App. 2002). The prosecution in both of these cases, as in the cases at bar, refused the defendants' requests for copi......
  • Cervantes v. Cates
    • United States
    • Arizona Court of Appeals
    • September 23, 2003
    ...and it would be impossible for him to review those tapes effectively at the jail. Cervantes relies on Westerfield v. Superior Court, 99 Cal.App.4th 994, 121 Cal.Rptr.2d 402 (2002), where the California Court of Appeal held that under California's pretrial disclosure rules the mere right to ......
  • Tennille v. State
    • United States
    • Georgia Supreme Court
    • November 21, 2005
    ...279 Ga. 884 ... 622 S.E.2d 346 ... The STATE ... No. S05A0927 ... Supreme Court of Georgia ... November 21, 2005 ...         Ernie M. Sheffield, Bainbridge, Robert ... 254, 89 P.3d 663 (2004); Cervantes v. Cates, 206 Ariz. 178, 76 P.3d 449 (2003); Westerfield v. Superior Court, 99 Cal.App.4th 994, 121 Cal.Rptr.2d 402 (2002) ...         Because ... ...
  • State v. Jones
    • United States
    • Georgia Court of Appeals
    • February 9, 2007
    ...283 Ga. App. 539 ... 642 S.E.2d 183 ... No. A06A2089 ... Court of Appeals of Georgia ... February 9, 2007 ...         Paul L. Howard, Jr., Dist. Atty., ... Cates, 206 Ariz. 178, 185-186, 76 P.3d 449 (2003); Westerfield v. Superior Court, 99 Cal. App.4th 994, 998, 121 Cal.Rptr.2d 402 (2002) ...         The ... ...
  • Request a trial to view additional results
1 books & journal articles
  • Discovering child pornography: the death of the presumption of innocence.
    • United States
    • Ave Maria Law Review Vol. 6 No. 2, March 2008
    • March 22, 2008
    ...(1970))). (14.) E.g., United States v. Kimbrough, 69 F.3d 723, 730-31 (5th Cir. 1995). (15.) See, e.g., Westerfield v. Super. Ct., 121 Cal. Rptr. 2d 402, 404-05 (Cal. Ct. App. (16.) HENRY COHEN, CRS, CRS REPORT FOR CONGRESS, CHILD PORNOGRAPHY: CONSTITUTIONAL PRINCIPLES AND FEDERAL STATUTES ......

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